Since the onset of the pandemic, many employers have chosen to have their employees work remotely whenever possible; however, when a position is being performed by an H-1B visa holder, it may not be apparent whether they are legally permitted to work from home without an amended petition.

The question of whether or not an H-1B employee can perform work remotely from home depends on several factors. Employers will be responsible for making these judgments, and in some cases, they will need to file an amended H-1B petition with the new location where the work will be performed. However, in some cases, other actions will be required to be taken, such as posting the labor condition application (LCA) at home.

When an Amended Petition Must Be Filed

Whenever the employee is changing the location where they will work from the metropolitan statistical area (MSA) where the original application is covered in the approved H-1B petition, the employer will need to file for an amended H-1B petition. This will be required even if the original LCA is appropriately posted in the new location.

However, once the amended petition is filed, there is no need to wait for the petition to be processed. Instead, the employee may immediately begin work at the new location.

When an Amended Petition is Unnecessary

There are a few conditions under which the filing of an amended petition will be unnecessary. So, let’s take a look at these.

New Location Within the Same MSA

If an employee is shifting work location within the same MSA, then a new LCA will be unnecessary, and it will not be required to file an amended petition. However, it will be necessary to post the LCA in the new location of work regardless. This would be required even if the whole office moves to remote work rather than simply the one H-1B employee.

Short Term Placement

If an H-1B employee will only be moving to a new location for a short period of time which is typically regarded as 30 days, or in certain cases where the employee is still regarded as based in the same location up to 60 days, there is no requirement to file for an amended H-1B petition. For circumstances where the employer only intends for the H-1B worker to work from home for 30 days or, in some circumstances, 60 days in a year, then the short-term placement requirements may apply. It is important to remember, though, that the provisions for short-term placement will only apply for H-1B workers, not for H-1B1 workers or for placement outside of the area of the approved MSA.

Non-Worksite Location

In cases where the H-1B employee will only be going to a worksite location, an amended H-1B petition will be unnecessary. These situations include when:

• An H-1B employee is traveling to participate in any type of employee developmental activity.
• An employee will not spend a significant amount of time at a single location.
• The position is peripatetic such as when the primary position is in one location, but the employee will occasionally travel to other places for short periods of time. In this case, the travel may recur; however, the visits cannot be excessive in length.